At the risk of becoming tedious, we note the Department of Justice issued a press release last week vowing to “investigate and hold accountable medical providers and pharmaceutical companies that mislead the public about the long-term side effects of chemical and surgical mutilations.” The Attorney General added that: “…it is a felony to perform, attempt to perform, or conspire to perform female genital mutilation (‘FGM’) on any person under the age of 18. … That crime carries a maximum prison sentence of 10 years per count.”
We believe the Attorney General is referring to 18 U.S. Code 116 which is a law proscribing female genital mutiliation. This subject has been around since long ago when the U.S. subscribed to international treaties which sought to ban such procedures as part of religious practices throughout the world. Sources of international human rights law on Female Genital Mutilation.
The current version of the Federal Crimes Code was amended in 2021. It says:
Section 116 (b) A surgical operation is not a violation of this section if the operation is—
(1) necessary to the health of the person on whom it is performed, and is performed by a person licensed in the place of its performance as a medical practitioner; or
(2) performed on a person in labor or who has just given birth and is performed for medical purposes connected with that labor or birth by a person licensed in the place it is performed as a medical practitioner, midwife, or person in training to become such a practitioner or midwife.
The Attorney General’s statement then steps out onto a pretty thin limb. “The Department of Justice will not sit idly by while doctors, motivated by ideology, profits, or both, exploit and mutilate our children.”
The statute explicitly authorizes surgical procedures necessary to the health of a person. We must all concede that what is surgically necessary is a challenging term but then again, we have some signficant protections. If the patient does not consent to the procedure, the law is clear no physician has authority to employ it. No medical facility would abide by physicians performing unconsented procedures and the states which license those physicians would also have something to say both in terms of criminal assault and the continued right of the physician to practice.
Now we have the nettlesome question of transgender care and minor children. There is a body of science both in the U.S. and abroad finding that many people approaching adolesence become conflicted about their gender. This writer knows of no “ideology” or religious group that promotes transgender conflict or behavior. In four decades of practice as a family lawyer, I never encountered a family conflict where parents wanted a child to adopt a different gender. What I did observe was the anguish parents felt when confronted with children who identified differently than the sex assigned to them as birth. Most believed that this expressed preference by the child will not only cause the parents humiliation. They also fear that their child will be ostracized. Meanwhile, it is undeniable that both the parents and the child typically stuggle with the feelings and the treatment. This writer has some concerns that people under 18 may see a transgender identity as an appealing way to gain notariety; a kind of fad. But not many parents I have enountered would yield to surgery or medication to support what they perceived to be a fad rather than a serious dilemma on the part of their child.
Data from the American Medical Association’s JAMA/Network reports that from 2016 to 2020 3,700 patients ages18 and under had gender affirming surgery of some kind. The overwhelming number of these procedures involved breast/chest surgery. 400 had surgery involving the genitalia. The remaining 300 were facial or other cosmetic procedures. National Estimates of Gender-Affirming Surgery in the US | Obstetrics and Gynecology | JAMA Network Open | JAMA Network
To secure any form of non-emergent child surgery nearly every medical care provider is going to demand the consent of the parents and the child. Moreover, this writer cannot fathom any surgeon who would proceed beyond a consult for transgender surgery of any kind which would not have an enduring paper trail of psychological and/or psychiatric treatment. Could one parent be taking a child to secure transgender prescriptive treatment without the consent of the other parent? That’s an intriguing question but absent a court order, there is no requirement that one parent secure the other’s permission to move down that road. In fact, I know of nothing that inhibits children securing breast reductions or augmentations so long as there is no court order and one parent consents to the child’s wish.
So what do we have here? A record of one surgery per week to genitalia as part of transgender treatment measured over a five year period. This has been unfolded to the public as physicians mutilating children for “ideology and profit.” It seems to this writer that the real mission here is to strike fear into the medical community to suspend transgender care of any kind. This is done based on claims of “woke science” attributed to the AMA, the American Academy of Pediatrics and the American Psychological Association. As I noted, I have some concerns that expressions of transgender need may be a trend. But I also keep searching for what parents confronting this issue in their own households are to do except offer thoughts and prayers to their children. Should you think that is a solution, consider this statistic; Nearly 1 in 5 transgender or nonbinary youth ages 13–24 have attempted suicide. JED Foundation.
Youth Suicide – Current Trends and the Path to Prevention
Another other troubling concern is “who governs our families?” In 2022, the U.S. Supreme Court decided in Dobbs v. Jackson Women’s Health Organization thatdecisions related to the right of women to secure abortions were matters for the states to decide. 597 U.S. 215 (2022). States can regulate and effectively overrule the decisions of families and individuals on this subject. Implicit in the Attorney General’s memo is that your local United States’ Attorney may be wading in on what care you may secure from your physician if your child seeks treatment for gender dysphoria. Many legal commentators note that given the state of the law today, the U.S. Attorney in your world may not get very far. But the unstated goal seems to be to eradicate any medical care for this condition.
If you have been reading the blog here is a summary of the inconsistencies. Right of the state to compel vaccination where your illness could harm others? Yes, as of 1905 but clearly a hot issue today (think measles). Right of the state to regulate whether or how you may terminate a pregnancy? Affirmed by Supreme Court in 2022. Right to address what to do with your child expressing transgender dysphoria? Either the state or the feds may be on your doorstep or any physician you work with. If you are an advocate for government efficiency (and who isn’t?) you have to ask who is in charge of public health and does it make sense in 21st century America that you could be dead from flu because your neighbor fears the shot? This is a place where Congress should speak. But we live in a world where Congress sit in the stands while the executive and judicial branches slug it out over whether federal law means anything once there is an executive order or DOJ guidance professing to overrule it.
There are places where conflicting federal and state laws overlap. And then there are questions of a constitutional dimension over the right of a family to privacy. For parents of any child who comes to them professing gender based concerns, there seems no safe place to turn for advice on how to manage this perilous situation. The parents, the children and the physicians trying to address what is a growing and potentially life-threatening situation related to children have been told by their chief law enforcement officer; don’t guess wrong or face 10 years in jail.